Rajen Boro @ Gobla vs State Of Assam

Mir Alfaz Ali, J

Heard Mrs. S.K. Nargis, learned Amicus Curiae and Mrs. B. Bhuyan, learned Additional Public Prosecutor.

This appeal is directed against the judgment and order passed by learned Sessions Judge, Udalguri in Session Case No. 124(U)/2014, whereby, the

learned Sessions Judge convicted the accused-appellant under Section 302 I.P.C. and sentenced him to rigorous imprisonment for life and fine of Rs.

5,000/- with default stipulation.

The prosecution case in brief was that on 11.07.2014, a quarrel took place between Bodu and Gabla. On the same day, evening, when Bodu and his

wife went to the house of Gabla to settle the matter, again quarrel took place between them and in course of the quarrel, Gabla struck Bodu on his

head with a hammer. As a result of which he sustained grievous injury. On the following day, he was taken to Guwahati Medical College Hospital for

treatment. However, on 16.07.2014, Bodu (deceased) succumbed to the injuries. Thereafter, FIR was lodged on 17.07.2014 by Balen Basumatary

(P.W.4). On the basis of the said FIR, Police registered Mazbat P.S. Case No. 35/2014 under Section 302 IPC and on completion of investigation,

submitted charge sheet against the accused-appellant under Section 302 IPC.

In course of trial, learned trial Court framed charge against the accused-appellant under Section 302 IPC, which was abjured by the accused-

appellant. In order to bring home the charge, prosecution examined 9 (nine) witnesses. The Court also examined 1 (one) witness as C.W.1.

The P.W.7, Dr. Arpan Mazumdar who conducted the Post Mortem Examination, found the following injuries on the body of the deceased :

“1) Laceration of size 3cm X 1.5 cm X nasal cavity deep is present over nose, 2.5 cm below the nasal bridge. The margins are irregular.

2) Laceration of size 8 cm X 2 cm X skull deep is present over fronto parietal area on the midline and 7 cm above the eye brow. The scalp tissue

below the injury is fractured, which is depressed fracture of size 3.5 cm x 4 cm with radiating fracture of length 6cm extending upto left temporal

area.

3) Abrasion of size 5 cm X 4 cm is present over right side of abdominal wall, 12 cm away from midline and 16 cm above the iliac crest.

No ligature mark is detected around the neck and on dissection the neck tissues are found healthy.

CRANIUM AND SPINAL CANAL :-

Membrane â€" Extradurel haemorrhage of size 7 cm X 4 cm X 1.5 cm is present over left temporal area.

Subdural haemorrhage is present over left cerebral hemisphere.

Brain â€" congested. Liver â€" congested. Kidneys â€" both are congested.

Thorax :-

Pleurae â€" congested, Laryax and trachrea â€" congested. Lungs â€" congested. Heart â€" contain liquid blood.

Abdomen :â€

Walls â€" as described. Peritoneum â€" Peritoneum congested, Mount â€" Pharynx. Oesophagus â€" Mucossa of all are congested.â€​

In the opinion of the doctor, the death was due to coma as a result of injuries sustained over the body and all the injuries were ante-mortem and

caused by moderately blunt weapon and homicidal in nature. This medical evidence was not put to challenge during cross-examination.

P.W. 1, Chandan Brahma testified that 4 months ago, the accused-appellant Gobla hit Bodu on his head with a hammer at the front Courtyard of his

house. He also deposed that the hammer with which the accused-appellant hit the victim, was brought by him from inside his house.

P.W.2, Sri Ramesh Wary and P.W.3, Sri Dhani Ram Basumatary also deposed in the same tune that the accused assaulted the victim on his head

by a hammer in the front Courtyard of the house of the accused-appellant.

P.W.5, Smti Anita Brahma also deposed in the same tune that the accused appellant hit the victim with the hammer. However, in her cross-

examination P.W.5 stated that, initially the accused-appellant was not armed with the hammer. Later on, he brought the hammer from the house and

assaulted the victim.

Primarily basing on the testimony of the aforementioned witnesses, P.W.1, P.W.2, P.W.3 and P.W.5 and medical evidence of P.W.7, the learned

trial Court recorded the conviction of the accused-appellant. What we notice is that the death of the victim as a result of injury caused by the accused-

appellant is not disputed.

The learned Amicus Curiae in her argument, has also not seriously contested the finding of the learned trial Court, that the death of the victim was

homicidal. However, the contention of the learned Amicus Curiae is that there was quarrel between the parties and in course of the quarrel, the

accused brought the blunt object and dealt a single blow on the heat of passion and therefore, there was no intention on the part of the accused-

appellant, to cause death, and as such, he could not have been convicted for commission of murder. At best, a conviction could be recorded for an

offence of culpable homicide not amounting to murder, submits the learned Amicus Curiae. Having regard to the facts and circumstances under which

the occurrence took place, we also find the submission made by the learned Amicus Curiae preponderous.

What is evident from the materials on record is that the occurrence took place in the Courtyard of the house of the accused-appellant in the

evening. It is also in the evidence that there was quarrel between the accused and the victim in the morning hours. The victim and his wife went to the

house of the accused-appellant in the evening and again an altercation took place between them, and in course of such altercation, the accused-

appellant brought a hammer from inside the house and dealt a blow on the head of the victim and left the place. The victim was shifted to hospital for

treatment. However, no FIR was lodged immediately after the occurrence and the FIR was lodged only after the death of the victim after 6 days.

What is also evident is that the occurrence took place in the house of the accused-appellant. It is in the evidence, that when the accused-appellant was

alone in the Courtyard of his house, the complainant party went there and picked up quarrel with him. Evidently, the accused-appellant was initially

unarmed and only in course of the quarrel, brought the hammer from inside the house and dealt a blow and immediately left the place of occurrence.

Therefore, the circumstances, that the accused-appellant was unarmed and it was the complainant party, who went to the house of the accused-

appellant, picked up quarrel with them and in course of the quarrel, the accused-appellant being provoked, brought the weapon and dealt a single blow

to the victim at the heat of passion and immediately left the place, clearly demonstrates that there was no intention or pre meditation on the part of the

accused-appellant and he caused the injury in course of quarrel out of sudden provocation. Had he harboured any intention to cause death, the

accused-appellant could have brought some other dreaded weapon from his house or he would not have left the place after giving a single blow with

the blunt object. Giving a single blow and leaving the place immediately also shows that he has not taken any undue advantage of the situation.

Therefore, all the above facts and circumstances, under which the injury was caused to the victim by the accused-appellant, brings the action of the

accused-appellant squarely within the sweep of exception 4 to Section 300 IPC. When evidently the accused-appellant caused the injury to the victim

without any premeditation and in course of sudden quarrel on the heat of passion and without having taken any undue advantage, he could not have

been convicted under Section 302 IPC for the offence of murder. Therefore, we set aside the conviction and sentence of the accused-appellant under

Section 302 IPC, instead, convict him under Section 304 Part II, IPC inasmuch as any intention to cause death or intention to cause such bodily injury

as is likely to cause death in the facts and circumstances of the case may not be attributed to the accused-appellant.

It is submitted by the learned Additional Public Prosecutor and also appears from the record that the accused-appellant has been in custody for

more than 5 years since his arrest during the investigation. We are of the view that sentence for the period which the accused-appellant has already

undergone till today would meet the ends of justice. Accordingly, we sentence the accused-appellant for the period which he has already undergone

during the course of investigation, trial and thereafter. Accordingly, the appeal stands partly allowed. As the appellant has already undergone the

sentence, he be released forthwith, if not required in any other case.

Appreciating the assistance rendered by Ms. S.K. Nargis, learned Amicus Curiae, we hereby provide that she will be entitled to professional fee

of Rs.7500/-. Upon production of a copy of this judgment, Guwahati High Court Legal Services Committee shall pay the fee to Ms. Nargis.

Send down the LCR along with a copy of this judgment.

A copy of the judgment be also sent to the Superintendent of the concerned jail.